[2022] KEHC 12713 (KLR)

Republic v Chief Magistrate’s Court Thika & another; Lucy Wanjiku Kamau (Exparte) (Judicial Review Application 6 of 2019) [2022] KEHC 12713 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12713 (KLR)

Republic of Kenya

In the High Court at Kiambu

Judicial Review Application 6 of 2019

MM Kasango, J

June 16, 2022

IN THE MATTER OF AN APPLICATION FOR THE ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE MATTER OF UNREASONABLE USE OF POWERS BY HON. G. OMODHO, SRM

Between

Republic

Applicant

and

Chief Magistrate’s Court Thika

1st Respondent

Attorney General

2nd Respondent

and

Lucy Wanjiku Kamau

Exparte

Judgment

1. The ex parteapplicant, sought of this Court, leave to apply for judicial review orders of certiorari and mandamus. That application for leave to apply for the judicial review orders was before court on June 24, 2019. On that day, the court granted leave as sought but declined the prayer for the leave to operate as a stay, staying the proceedings in Thika Chief Magistrate’s Court in Civil Case No. 629 of 2014.

2. That leaving having been granted Order 53 Rule 3(1) of the Civil Procedure Rulesrequired the ex parte applicant to file the substantive Notice of Motion within 21 days of the date of the leave. Order 53 Rule 3(1) is in following terms:-“When leave has been granted to apply for an order of Mandamus, prohibition or Certiorari, the application shall be made within twenty-one daysby notice of motion to the high court, and there shall, unless the judge granting leave otherwise directed, be at least eight clear days between service of the notice of motion and the day named therein for the hearing." (Underlining mine)

3. The above Rule, it will be noted, is in mandatory terms. This is indeed what the Court of Appeal stated as cited in the case Republic v Speaker of Nairobi City County Assembly & anotherexparte Evans Kidero (2017) eKLR, thus:-“… in the case of Wilson Osolo v John Ojiambo Ochola & The Attorney General CA No. 6 Nairobi of 1995 while considering whether the court has power or jurisdiction to enlarge time stipulated under Order 53 of the Civil Procedure Rules:-“It was a mandatory requirement of Order 53 Rule 3 (1) of the Civil Procedure Rules then (and it is now again so) that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days on 15th February 1985 there was no proper application before the Superior court. This period of 21 days could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules.”

4. Justice John M. Mativo have had similar sentiment, which sentiment find favour with me in the case Republic v Public Procurement Administrative Review Board & another; Mer Security & Communications Systems Ltd/Megason Electronics & Control 1978 (JV) & another (interested parties; Ex Parte Magal Security System Ltd/Firefox Kenya Limited (JV)(2019) eKLR as follows:-“61. In view of my conclusions herein above, and my finding that section 9 (3) of the Law Reform Actand Order 53 Rule 3(1) of the Civil Procedure Rules, 2010 are couched in mandatory terms, and, also, my finding that article 159 (2) (d) of the Constitutioncannot be of help to the ex parte applicant under the circumstances of this suit, I find and hold that the preliminary objection succeeds.”

5. The ex parte applicant having obtained the court’s leave to apply for judicial review orders on June 24, 2019, did not file the substantive Notice of Motion, as required under Order 43 Rule 3(1) that is within 21 days of the date of leave. The ex parte applicant filed that substantive application on October 15, 2019. There is no doubt that, that period was beyond the 21 days period of Order 53 Rule 3(1).

6. The applicant did not seek leave to file the notice of motion application beyond the 21 days period. It follows the substantive notice of motion application filed on 15th October, 2019 without leave to file it beyond the 21 day period is a nullity.

7. The Court of Appeal while considering an appeal from a decision of the High Court where the High Court struck out a substantive notice of motion for judicial review which was filed outside the 21 days in the case Longinus Oroni Murunga v David Masika Mafumbo (2017) eKLR stated:-“As regards the second ground of appeal, it is true that Article 159 (2) (d) of the Constitution, provides that justice shall be administered without undue regard to technicalities of procedure. It is also true that the High court was required to apply the overriding objective principle which is to facilitate the just, expeditious, proportionate and affordable resolution disputes. The High court had also inherent jurisdiction. However those principles do not apply to the time limited by law for instituting court proceedings. They apply to competent court proceedings which a court has jurisdiction to entertain. The time limited by the court which was in conformity with the law for instituting judicial review applications, goes to the competence of the application and to the jurisdiction of the High Court to entertain the application. Since the application was filed out of time and the time had not been extended by the court, the decision of the High Court to strike out the application was correct.”

Disposition 8. With the above in mind, the judgment of this court is that the Notice of motion dated 28th June, and filed on 15th October, 2019 is dismissed with costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 16TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceFor Ex parte applicants: -Wanda HB D. JumaFor Respondent: - No appearanceCourtJudgment delivered virtually.MARY KASANGOJUDGE